R. v. Martin, 2011 ONCJ 423

COURT FILE No.: Toronto 1005515 DATE: 2011·08·04 Citation: R. v. Martin , 2011 ONCJ 423 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JASON MARTIN Before Justice J.W. Bovard Heard on July 26; August 2, 2011 Reasons for Judgment released on August 4, 2011 Ms. E. Metz ................................................................................................................ for the Crown Mr. P.

MacDonald ............................................................................... for the accused Jason Martin Bovard J.: [ 1 ] These are reasons for sentence on three charges of trafficking and for a conditional sentence breach that arose out of the trafficking charges. I sentenced Jason Martin on November 10, 2010 to a conditional sentence of 22 months for two counts of trafficking in MDMA (ecstasy) and one count of possession for the purpose of trafficking in MDMA. One of the conditions of this sentence was that he not have possession of a controlled drug except as authorized by law.

Another condition was that he be under house arrest except for certain purposes, which were listed in the conditional sentence order. [ 2 ] On May 17, 2011, Mr. Martin was arrested and charged with one count of trafficking in MDMA and one count of trafficking in ketamine (offence dates March 16, 2011) and one count of trafficking in MDMA (offence date April 9, 2011). Pursuant to s. 742.6 (10) of the Criminal Code this stopped the running of his conditional sentence.

(10) The running of a conditional sentence order imposed on an offender is suspended during the period that ends with the determination of whether a breach of condition had occurred and begins with the earliest of (

a) the issuance of a warrant for the arrest of the offender for the alleged breach, (

b) the arrest without warrant of the offender for the alleged breach, and (

c) the compelling of the offender’s appearance in accordance with paragraph (1)( d ). (Emphasis added) [ 3 ] Mr. Martin was held in custody for a bail hearing and he consented to his detention on May 25, 2011. Pursuant to s. 742 .6 (12) of the Criminal Code the detention order started his conditional sentence running again.

(12) A conditional sentence order referred to in subsection (10) starts running again on the making of an order to detain the offender in custody under subsection 515(6) and, unless

section 742.7 applies, continues running while the offender is detained under the order. (Emphasis added)

Section 742. 7 did not apply in this case. [ 4 ] On July 26, 2011 Mr. Martin consented to a finding that he breached his conditional sentence and pleaded guilty to the new charges. [ 5 ] The Crown seeks an order that his conditional sentence be terminated under s.742.6 (9) of the Criminal Code and that he serve the remaining 13 ½ months in jail. The Crown further seeks a sentence of 2 ½ years consecutive on the new charges. This would be a total of 3 years, 7 ½ months. [ 6 ] The defence agrees that his conditional sentence be terminated, but asks the court to impose a concurrent sentence of 2 years for the new charges.

[ 7 ] Mr. Chad Kicknosway from Aboriginal Legal Services in Toronto prepared a Gladue Report for Mr. Martin’s sentencing on November 10, 2010. Defence counsel presented it to the court for the purpose of the court’s disposition on the conditional sentence breach and for sentencing on the new charges. I relied on it since it is relatively recent and no substantial changes in its contents were reported to the court (Exhibit 2). [ 8 ] The Gladue Report was very informative, thorough and thoughtfully written. Mr. Martin is a 31 year old aboriginal offender. He is non-status Mi’kmaq.

He has three children who live with his partner’s mother. He had a tumultuous relationship with his partner and they no longer live together. He declared that he is not currently in a position to take care of his children and that they are fine with their grandmother (his partner’s mother) for the time being. [ 9 ] Mr. Martin’s lack of parenting ability stems from him being a first generation Indian Residential school survivor. His father and uncle attended residential school.

The Gladue Report cites the Canadian Collaborative Mental Health Initiative’s finding that this resulted in most residential school children growing up without the “skills, knowledge, or emotional strength to parent their own children.” This led to terrible dysfunctionality and abuse in their future families. Mr. Martin was a child in one of these future families. He was exposed to serious domestic violence, physical and emotional abuse and grew up in a milieu of substance abuse. In addition, he was a direct victim of physical abuse from his parents. [ 10 ] His mother moved away from the family with Mr.

Martin, but continued to abuse him. When he was six years old his mother abandoned him and ran off with his father’s best friend. This left Mr. Marin alone to fend for himself. He lived alone, shoplifting for food until three weeks later he was caught. The authorities placed him with his father, however, the abuse continued. He became violent and was kicked out of school due to his uncontrollable and violent disposition. He went into the care of the Children’s Aid Society when a teacher saw his father assault him. He moved from foster home to foster home and eventually from group home to group home.

When he was 13 years old he ran away and started living on the street. He was homeless for the most part of the next 15 years. [ 11 ] Mr. Martin is addicted to drugs and alcohol. He has made what appear to the court to be weak to moderate, sporadic efforts to engage in rehabilitative programs. The Gladue Report states that “around 2003 he participated in programs such as Spirit Watch and NaMeRes in Toronto and that in 2004 he attended Rainbow Lodge in Wikwemikong, Ontario. [ 12 ] The Gladue Report states at page 15 that “sometime in 2007” he hit rock bottom and stopped using drugs. The Report quotes Mr.

Martin as saying: I hit rock bottom. I was fucked up. I was getting addicted to crack. I was stuck out on the streets. I was too far into it. That’s when I realized I had a problem. I went to jail around that time for aggravated assault charges. That’s when I quit. Quit everything , cigarettes too . When I got out, I continued to be clean (Emphasis added). [ 13 ] The Report continues saying that “Jason remained clean for nearly three years before he relapsed.” He worked steadily and had an “excellent paying job working in insurance claims with Rubin Ariaratnam.” He rented his first home.

He felt that his life was turning in the right direction. Then, in November 2009 he suffered a serious back injury in a car accident. The doctor prescribed OxyContin for his pain and he became addicted to it. This, plus the death of his grandfather in February 2011 caused him to fall back into alcohol and drug abuse and criminal behaviour. He started trafficking to survive and to support his habit.

After two to three weeks he was caught and came before the court in November with trafficking charges and now in August with more trafficking charges and an allegation of breach of conditional sentence. [ 14 ] A close examination of Mr. Martin’s criminal record casts significant doubt on his assertions about being “clean” and “Quitting everything” “sometime in 2007”. Mr. Martin states that during this time he went to jail for aggravated assault. And that when he got out he “continued to be clean”.

His record shows the following: On September 19, 2007 he was convicted of failing to comply with a probation order and received one day in jail in addition to 10 days pre-trial custody. On November 13, 2007 he was convicted of fail to comply with an undertaking and personation with intent and received 15 days on each charge concurrent in addition to 30 days pre-trial detention.

On January 7, 2008 he was convicted of impaired driving and received one day in jail in addition to 135 days pre-trial custody, probation for one year and a three year driving prohibition On June 9, 2008 he was convicted of aggravated assault and armed robbery and received 17 months on each charge concurrent in addition to 19 months of pre-trial custody. On August 16, 2009 he committed the offence of ‘Over 80’ and was convicted on June 18, 2010. He received 90 days in jail and a three year driving prohibition.

On September 8, 2009 he committed the offence of possession of a controlled substance and was convicted on April 7, 2010. He received a $200.00 fine. (The last two convictions were recorded on the “Case Tracking” form of criminal record, which unlike the traditional criminal record, gives the date of the commission of the offence, as well as the date of conviction. The traditional form of criminal record only gives the date of conviction.) [ 15 ] Since Mr. Marin relates his “coming clean” to the time that he went to jail for aggravated assault charges that would have been in June of 2008, not in 2007.

Also, in the above cited quote reproduced in the Gladue Report, he failed to mention that he was also convicted of armed robbery at the same time that he was convicted of aggravated assault. Those charges must have been quite serious to

have merited such a long sentence. I point out that those were the days of 2:1 for pre-trial detention. [ 16 ] It must have not been much after his release for the aggravated assault and robbery that he committed the offence of ‘Over 80’. And then the next month he committed the offence of possession of a controlled substance. [ 17 ] Therefore, based on the above there was no “ nearly three years” starting “sometime in 2007” before he relapsed. He has committed offences from 2007 to 2010.

He obviously did not “continue to be clean” when he was released from jail for the aggravated assault and the robbery: His record shows that shortly after his release he committed the offences of ‘Over 80’ and possession of a controlled drug. And on January 7, 2008 he was convicted of impaired driving. [ 18 ] Was he only referring to drugs when he said that he “quit everything”? I am dubious because he bothered to point out that he also quit cigarettes too. Would he bother to point this out and not intend the court or the Gladue Report writer to think that he also quit drinking alcohol?

Maybe, he did not say that he quit drinking alcohol. But saying that “I quit everything” and not mentioning that he was still drinking alcohol is misleading. Even if I gave him the benefit of the doubt, he still has the conviction for possession of a controlled substance on September 8, 2009. [ 19 ] Another interesting point about the “nearly three years” of being “clean” starting “sometime in 2007” is that as I pointed out above, by his own admission, this “clean” period did not start until he was incarcerated for aggravated assault on June 9, 2008.

Moreover, since his record shows that he served 19 months pre-trial detention he had to have been incarcerated in November or December 2006 for those charges and remained in custody until he was released after serving his sentence on the aggravated assault and the armed robbery, which must have been a little before August 16, 2009 when he committed the ‘Over 80’ offence. [ 20 ] His criminal record shows that between the time he was sentenced for the aggravated assault and the armed robbery (June 9, 2008), which is when he said that he “hit rock bottom” and came “clean”, and April 22, 2010, the date of the commission of the offences for which I sentenced him to a conditional sentence, ( a span of approximately 22 months) he received sentences of incarcerated totalling 20 months: 17 months for the aggravated assault and the armed robbery and 90 days for ‘Over 80’ on June 18, 2010.

Therefore, he has been in jail for most of the time that he said that he was clean and working and renting a home. And when he did get out of jail he committed further offences involving drugs and alcohol. [ 21 ] Based on this analysis of his criminal record, I conclude that perhaps Mr. Martin was not truthful in his assertions cited above about remaining “clean for nearly three years before he relapsed”, and about working steadily at an “excellent paying job working in insurance claims with Rubin Ariaratnam”, renting his first home and feeling that his life was turning in the right direction.

When would he have had the time to do all of this? Perhaps it was poor communication with Mr. Kicknosway or that further investigation and confirmation of these details would have clarified the matter resulting in a different conclusion. But my suspicion is that Mr. Martin was trying to make himself appear better than he was. [ 22 ] When I sentenced Mr. Martin in November 2010, I imposed several conditions on him designed to help him back on to the road to rehabilitation. The majority of these conditions are listed on pages 20 to 22 of the Gladue Report.

I went through each one with defence counsel to find out how well he complied with them. He adduced a letter from Ms. Patti Pettigrew, a Gladue Aftercare Worker with Aboriginal Legal Services (Exhibit 1). The letter explains Mr. Martin’s efforts to comply with his conditional sentence. [ 23 ] I consider his compliance to have been severely lacking. There are many reasons for this: Mr. Ariaratnam, the person with whom he was living got married and Mr. Martin had to move. This set off what Ms.

Pettigrew refers to as a “housing crisis and financial constraints”, plus the onset of depression and suicidal thoughts for which he was hospitalized for one night. Fights broke out (not involving Mr. Martin) at one of the places where he went for counselling and he stopped going. In addition, his general life style prevented him from complying with the conditional sentence order. For example, he owed persons money for drugs that he obtained from them and they were threatening his life and breaking into his home. He decided to sell drugs in order to pay them. Then he got arrested and was kept in jail. [ 24 ] Mr.

Martin has a long criminal record (Exhibit 3). He has convictions for many violent offences and for a general menu of other common offences. In addition to his convictions for trafficking from November 10, 2010, he was convicted of trafficking in 2005, possession of cocaine in 2006 and possession of a controlled substance in 2009. [ 25 ] Mr. Martin has a girl friend with whom he plans to continue a relationship when he gets out of jail and she is very supportive of him.

His Gladue Report states on page 20 that his long term goals are to return to school, complete his GED, enroll in a post-secondary program in addictions counselling. The Report states that “Jason has reached a point in his life that he wants to help other youth to avoid the same path that he took. Ideally, he would like to see himself as a drug addictions counsellor for youth. Jason has also expressed an interest in writing a book that is autobiographical in nature about his life experiences.” He also has a good friend who will offer him employment.

Analysis [ 26 ] The following are the relevant sections of the Criminal Code that I must consider in sentencing Mr. Martin. [ 27 ]

Section 742.6 (9) provides the court with the following possible orders for a person who breaches a conditional sentence:

(9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may

(

a) take no action; (

b) change the optional conditions; (

c) suspend the conditional sentence order and direct (

i) that the offender serve in custody a portion of the unexpired sentence, and (ii) that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optionalconditions; or (

d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence. 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, ... (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [28]

Section 10 of the Controlled Drugs and Substances Act states that: 10.

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part isto contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [29] In R. v. Gladue (SCC), [1999] 1 S.C.R. 688 the Supreme Court of Canada considered the sentencing ofaboriginal offenders. The court found that it is well documented that aboriginal persons are overrepresented in Canadian prisons (paras.58 – 65).

There is “widespread bias against aboriginal people within Canada, and ‘[t]here is evidence that this widespread racism hastranslated into systemic discrimination in the criminal justice system.” Regarding s. 718.2 (e), the court said: In our view, s. 718.2(

e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provisionconsists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges toundertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence inthe particular case. It should be said that the words of s. 718.2(

e) do not alter the fundamental duty of the sentencing judge to impose asentence that is fit for the offence and the offender. For example, as we will discuss below, it will generally be the case as a practicalmatter that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginaloffenders. What s. 718.2(

e) does alter is the method of analysis which each sentencing judge must use in determining the nature of a fitsentence for an aboriginal offender. In our view, the scheme of

Part XXIII of the Criminal Code, the context underlying the enactment ofs. 718.2(e), and the legislative history of the provision all support an

interpretation of s. 718.2(

e) as having this important remedialpurpose. (Para. 33) [30]

Section 718.2 (

e) requires the sentencing judge to consider “the unique circumstances of aboriginal offenders (para. 38).And at paragraph 64 the court stated:

The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree.

The provision may properly be seen as Parliament's direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process. [ 31 ] The court directed sentencing judges as follows at paragraph 66: How are sentencing judges to play their remedial role? The words of s. 718.2(

e) instruct the sentencing judge to pay particular attention to the circumstances of aboriginal offenders, with the implication that those circumstances are significantly different from those of non- aboriginal offenders. The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass a wide range of unique circumstances, including, most particularly: (

A) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the courts; and (

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. [ 32 ] The court commented on the “background factors which figure prominently in the causation of crime by aboriginal offenders”. It found that “ Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation.

These and other factors contribute to a higher incidence of crime and incarceration” (para. 67). [ 33 ] At paragraph 68 the court observed that: K …the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.

Moreover, as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be "rehabilitated" thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions. [ 34 ] The Supreme Court held at paragraph 69 that: While background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender, the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a

part in bringing the particular offender before the courts. In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member.

In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means. [ 35 ] In discussing how the traditional modes of sentencing are not particularly relevant or effective in aboriginal cases the court said “ What is important to note is that the different conceptions of sentencing held by many aboriginal people share a common underlying principle: that is, the importance of community-based sanctions” (para. 74).

And further, “ In all instances, it is appropriate to attempt to craft the sentencing process and the sanctions imposed in accordance with the aboriginal perspective” (para.74). [ 36 ] In spite of these pronouncements the court reminded sentencing judges that: The role of the judge who sentences an aboriginal offender is, as for every offender, to determine a fit sentence taking into account all the circumstances of the offence, the offender, the victims, and the community. Nothing in

Part XXIII of the Criminal Code alters this fundamental duty as a general matter. However, the effect of s. 718.2(e), viewed in the context of

Part XXIII as a whole, is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.

Section 718.2(

e) requires that sentencing determinations take into account the unique circumstances of aboriginal peoples. [ 37 ] The court offered this additional guidance to sentencing judges in paragraphs 78 to 81: … we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation.

It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant.

… Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment foraboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. … the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by thisoffender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding ofcriminal sanctions is held by the community?

What is the nature of the relationship between the offender and his or her community?What combination of systemic or background factors contributed to this particular offender coming before the courts for this particularoffence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, orovert racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense thatwould be significant to the offender and community, or are crime prevention and other goals better achieved through healing?

Whatsentencing options present themselves in these circumstances? The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in thecircumstances. There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required to takeinto account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including theunique circumstances of the offender as an aboriginal person.

Sentencing must proceed with sensitivity to and understanding of thedifficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstancesin light of the aims and principles of sentencing as set out in

Part XXIII of the Criminal Code and in the jurisprudence, the judge muststrive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2(e), sentencing judges have beenprovided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration whichare appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing. Inthis way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender. [38] In paragraph 88 the court pointed out that: … s. 718.2(

e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period ofincarceration, simply because the offender is aboriginal… [S. 718.2 (e)] may not always mean a lower sentence for an aboriginaloffender. The sentence imposed will depend upon all the factors which must be taken into account in each individual case. The weight tobe given to these various factors will vary in each case.

At the same time, it must in every case be recalled that the direction to considerthese unique circumstances flows from the staggering injustice currently experienced by aboriginal peoples with the criminal justicesystem. The provision reflects the reality that many aboriginal people are alienated from this system which frequently does not reflecttheir needs or their understanding of an appropriate sentence. [39] After Gladue, the Supreme Court decided R. v. Wells 2000 SCC 10 , 2000] 1 S.C.R. 207.

The issue in Wells was“whether a non-custodial sentence is reasonable…in circumstances where the paramount sentencing objectives are denunciation anddeterrence” (Para. 25). The court clarified that in Gladue they “in no way intended to suggest that as a general rule, the greater weight isto be given to principles of restorative justice, and less weight accorded to goals such as denunciation and deterrence” (Para. 40).

Section718.2(e) “requires a different methodology for assessing a fit sentence for an aboriginal offender; it does not mandate, necessarily, adifferent result” (Para. 44, emphasis in original). [40] Denunciation and deterrence are the paramount factors in sentencing persons who are trafficking in drugs for profit. Mr.Martin fits into that category. Ecstasy is a

schedule 111 substance and the Crown proceeded by way of indictment. Therefore, pursuant tos.5 (3) (

b) of the Controlled Drugs and Substances Act the maximum punishment is ten years. Ketamine is a

schedule 1 drug substanceand pursuant to s. 5 (3) (

a) the maximum punishment is imprisonment for life. [41] Mr. Martin’s rehabilitation is important, but in these circumstances it is secondary to general and individual deterrenceand the protection of the public.

At present it is obvious from his behaviour on the conditional sentence that his life is in disarray andthat due to the pressures of his life style and his personal mental and emotional condition he is unable or unwilling to organize himself insuch a way as to take advantage of the leniency that the court extended to him in giving him a conditional sentence and/or of theexcellent community resources and care givers available to him. [42] After considering the jurisprudence cited above, the Criminal Code, the Controlled Drugs and Substances Act, all of thecircumstances of the case, the evidence adduced in sentencing and counsel’s submissions I agree that Mr.

Martin’s conditional sentenceshould be terminated under s. 742.6 (9) (

d) and he is ordered to serve the remainder in custody. [43] With regard to the trafficking offences, the aggravating factors are that ecstasy is a dangerous drug used mainly by youngpersons. The defence did not object to this characterization of the drug by the Crown, so I take that as agreement with that statement. Mr.Martin sold large amounts of the drug on two occasions (1,148 pills for $1,500.00 and 500 pills for $750.00). On the third charge hegave away a small amount of Ketamine to the undercover officer.

He has a long criminal record, which includes similar offences and hewas serving a conditional sentence of 22 months for exactly the same offences when he committed these new offences just four and fivemonths after he received the conditional sentence. This is a blatant disregard for the court’s sentence. Moreover, it is a blatant disregardfor the efforts of the court and Aboriginal Legal Services and all of the fine Aboriginal community organizations that stepped up for Mr.Martin and agreed to help him with his life issues. His general life style is one of criminal behaviour.

Since 1999 he has been convictedof 26 offences. Many of these offences are very serious infractions of the law. From 1999 to the current date Mr. Martin has beenconvicted of criminal offences in every year except 2000 and 2002. He is addicted to drugs and alcohol and due to his life style he hasmade weak and irregular efforts to attend rehabilitative programs. He traffics in drugs to get by and to pay drug debts. Nothing haschanged in Mr. Martin’s life that would indicate that he will change his behaviour any time soon.

[ 44 ] The mitigating factors are that he has been in remand custody since his arrest, having consented to a detention order, and he pleaded guilty at an early opportunity. He is an aboriginal offender and the Gladue Report details a horrific childhood, which undoubtedly plays a significant

part in his criminal behaviour and lack of ability to rehabilitate himself. He has a girlfriend who is very supportive and a long standing best friend who can offer him employment, although he did take employment from him during his conditional sentence because according to defence counsel, he could not make enough money fast enough to pay off drug dealers who were after him for repayment of a drug debt.

He is still a young man who, if he does enter the path of rehabilitation, can escape this pattern drug abuse and criminality. [ 45 ] As with my disposition regarding the conditional sentence breach, I considered all of the factors mentioned in paragraph 42 above in determining the appropriate sentence for the trafficking offences. I also considered the principle of totality and that in this jurisdiction conditional sentences are commonly longer than a straight jail sentence for the same offence.

Based on all of this I conclude that the appropriate sentence for the trafficking offences is a total of 15 months consecutive to the time that he is serving on his conditional sentence. The 15 months for the trafficking offences are concurrent to each other, but consecutive to the 13 ½ months that he is serving on his conditional sentence. That is a total of 28 ½ months. [ 46 ] There will be an order under s. 109 of the Criminal Code for life and an order that he give a sample of his DNA pursuant to s. 487.051. Released: August 4, 2011 Signed: “Justice J. W. Bovard”